WEST VIRGINIA RECORD

CINCINNATI – An Ohio federal judge last week sent a lawsuit filed by a Portsmouth-based nursing home facility against Mississippi law firm McHugh Fuller Law Group back to a state court.

Attorneys for Heartland of Portsmouth OH LLC filed its lawsuit against McHugh Fuller, which focuses its practice on nursing home abuse and neglect, last month. The facility claims the firm is “encouraging” tort litigation against it.

McHugh Fuller, citing a theory of diversity jurisdiction, requested the case be removed to the U.S. District Court for the Southern District of Ohio’s Western Division.

Heartland of Portsmouth, in a motion filed in the federal court Jan. 13, argued the case should be sent back to Scioto County Common Pleas Court.

Judge Susan J. Dlott wrote in her six-page order, issued Feb. 19, that McHugh Fuller failed to offer any facts or evidence to support its assertion that the amount in controversy exceeds $75,000.

The firm also has not, Dlott noted, requested to take discovery on the amount in controversy.

“Here the Court can only speculate whether the amount of controversy in this case exceeds $75,000,” she wrote.

“McHugh Fuller has not met it burden to establish by a preponderance of the evidence that the Court has subject matter jurisdiction over this case.”

The firm already is sparking controversy in neighboring West Virginia after ABC News reported in December that partner Michael Fuller purchased a Learjet from the Charleston-based Segal Law Firm for more than $1 million in 2011. The firm is owned by West Virginia Supreme Court Chief Justice Robin Jean Davis’ husband, Scott Segal.

Last year, Davis wrote the majority opinion in a case resulting in an approximate $40 million verdict against another nursing home facility operated by HCR Manorcare. The ruling upheld a jury verdict in favor of Fuller’s client.

Attorneys for Heartland of Portsmouth — the same attorneys seeking Davis’ recusal in another case against an HCR ManorCare-affiliated nursing home — are asking for a temporary restraining order and injunctive relief against McHugh Fuller.

Heartland of Portsmouth claims the law firm, based in Hattiesburg, Miss., has engaged in “false and misleading advertising,” encouraging lawsuits against it and other similar facilities in Ohio.

“Defendant distributes advertisements of sensational content, which contain deliberately misleading references to certain government surveys, performed upon Heartland of Portsmouth’s facility, in order to deceive Heartland of Portsmouth’s clientele and the citizens of the surrounding community into believing that Heartland of Portsmouth is unsafe and has harmed their loved ones and community members,” attorneys with Anspach Meeks Ellenberger LLP in Toledo wrote in the original complaint.

In the complaint, the nursing home offers the wording on a full-page advertisement taken out by McHugh Fuller in the Portsmouth Daily Times and its website.

It says:

“ATTENTION! The government has cited HEARTLAND OF PORTSMOUTH NURSING for failing to operate and provide services according to Federal, State, and local laws and professional standards.

“If you suspect that a loved one was NEGLECTED or ABUSED at Heartland of Portsmouth, call McHugh Fuller today!

“Has your loved one suffered? Bedsores, Broken Bones, Unexplained Injuries, Death. 1-800-939-5580 [McHugh Fuller Law Group]”

At issue is the ad’s claim that the government “has cited” the nursing home.

“The ‘has cited’ language leads the reader to believe that the alleged citation has been recent,” the complaint states.

“This is in and of itself — quite apart from the rest of the advertisement — false and deceptive, because Heartland of Portsmouth has not had a citation remotely similar to the advertisement’s language since March of 2013, almost two years ago.”

Earlier this month, Anspach Meeks Ellenberger filed a motion for disqualification of West Virginia’s chief justice, Davis, from hearing a petition for writ of prohibition in an ongoing Kanawha Circuit Court case against a former HCR ManorCare-affiliated nursing home filed on behalf of the estate of Sharon Hanna.

Davis responded and refused to recuse herself from the case.

Robert M. Anspach is the attorney for HCR in both the Hanna case and the Douglas case, which was ruled on last year by the state Supreme Court and in which Davis authored the majority opinion.

According to the ABC News story, Fuller and other attorneys at the firm also had been responsible for raising more than $35,000 for Davis’ 2012 successful re-election campaign.

Last month, Heartland of Urbana OH LLC filed a nearly identical case to Heartland of Portsmouth’s in Champaign County Common Pleas Court.

In that case, McHugh Fuller also has requested that case be removed to federal court. Heartland and its attorneys are fighting the move.

Judge Walter H. Rice of the U.S. District Court for the Southern District of Ohio’s Western Division in Dayton is presiding over that case.